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Name: Hoffman v. Superior Court (Orange County)
Case #: G054414
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 11/07/2017

An information may describe multiple discrete acts, each of which constitute the charged offense, within a single count. The prosecution alleged over one hundred counts of healthcare insurance fraud (Pen. Code, § 550, subds. (a)(5), (a)(6)) against defendant. Each count identified a number of patient files and a timeframe that spanned years. The defendant’s demurrer to the complaint was overruled and he petitioned for writ relief. Held: Denied. A demurrer raises a legal challenge to the sufficiency of the accusatory pleading, testing only those defects appearing on the face of the pleading. Defendant argued the prosecution may not allege multiple acts in a single count, each of which constitutes a distinct offense, because each count thereby contains multiple offenses. Penal Code section 954 allows the charging of two or more different offenses, connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes, under separate counts. Each of the counts in this case set forth only one offense, but included evidence of multiple acts that, if proved, would satisfy the elements of the offense. This is more information than is necessary to satisfy the basic statutory pleading requirements and due process. Each count identifies the victim, the type of alleged fraudulent crime, the time frame during which the offense occurred, the patient files relevant to the charges, and the preliminary hearing exhibit number containing evidence of the offense. Any complications arising from the manner in which the offenses are charged may be remedied by a unanimity instruction at trial.

Defendant was not entitled to force the prosecution to proceed on only one act per count. Hoffman argued the prosecutor should have been required to select a single act for each of the charged offenses. However, the prosecution has the right to decide to elect a specific act, or the court must provide the jury with a unanimity instruction. Without an election, the defense is not prejudiced because forcing an election at the demurrer stage would result in the prosecution adding numerous counts to the information, and they could still proceed on a subset of those claims at trial. The defendant would still be in the position of having to defend against all of the allegations presented in the preliminary hearing without knowing exactly how the prosecution would proceed at trial. And the defendant may be subject to greater punishment if the accusatory pleading is amended to add additional counts. The Court of Appeal disagreed with People v. Salvato (1991) 234 Cal.App.3d 872 to the extent its rationale would apply to forcing an election at the demurrer stage.

The full opinion is available on the court’s website here: